Calcutta High Court (Appellete Side)
Ishita Chakrabarty vs Union Of India & Ors on 12 December, 2023
17
12.12.2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. 22882 of 2023
Ishita Chakrabarty
Vs.
Union of India & Ors.
Mr. Sabyasachi Chatterjee,
Mr. Omar Faruk Gazi,
Mr. Badrul Karim,
Mr. Ankan Das,
Mr. Sarajit Roy
...for the petitioner
Mr. Dev Kumar Sharma
...for the respondent no. 4
Ms. Rama Halder,
Ms. Tanuja Basak
...for the State
1. Affidavit-of-service filed in Court today be
kept on record.
2. The petitioner is the wife of a deceased
person who met his sad demise in an accident
in Uttrakhand. On the application of the
petitioner for ex gratia compensation for herself
and her then six year old daughter, the
Uttrakhand Government released funds for
payment of ex gratia compensation to the tune
of Rs.4,00,000/- to the petitioner. Although
initially the respondent no. 2, that is, the
District Magistrate, Howrah intimated the
petitioner that the fund was going to be
disbursed to the petitioner, subsequently the
same was withheld citing an order of injunction
obtained by the private respondent no. 4, who is
the mother of the deceased husband of the
petitioner.
3. Learned counsel submits that in terms of
Circular No. 776 dated June 08, 1999,
lumpsum ex gratia payment is to be made to
the widow and other legal heirs.
4. It is submitted that the injunction order,
which has been annexed to the present writ
petition, does not cover the ex gratia payment
now sought to be made to the petitioner but
deals with the bank accounts and other
properties, which are the subject matter of the
said succession proceedings.
5. Learned counsel for the petitioner also
places reliance on a judgment of the Supreme
Court in Jodh Singh vs. Union of India & Anr.,
reported at (1980) 4 SCC 306 for the proposition
that the family pension is required to be given
irrespective of whether the deceased has shown
his wife as his dependent or not.
6. Learned counsel also cites a judgment of
a learned Single Judge of the Delhi High Court
in Smt. Ganny Kaur vs. The State (NCT) & Ors.,
reported at AIR 2007 Delhi 273 for the
proposition that the compensation has to be
paid in view of agony or loss of a family
member, in the said case a daughter/son. It
was observed by the leaned Single Judge that
reliance placed on the personal law of
succession is of no consequence in such case as
this is a matter of compensation being awarded
by the State, which does not function under any
personal law but under the Constitution of
India in a secular State. The Delhi High Court
went on to observe that whenever the
relationship between the State and a citizen is
in issue, the personal law of the citizen has little
or no relevance. Personal laws operate mostly
in the domain of citizen versus citizen contests.
7. Learned counsel appearing for the private
respondent contends that the private
respondent is the mother of the deceased
person and is also a Class-1 heir in the same
bracket as the petitioner/widow. Hence, the
private respondent is equally entitled to the ex
gratia compensation disbursed on the demise of
the son of the private respondent. It is argued
that the private respondent comes within the
concept of family and that the application made
by the petitioner/widow was on the premise
that such compensation was to be given to the
'family' of the deceased, which also includes the
private respondent.
8. Learned counsel for the State submits
that the District Magistrate's hands are bound
by law and the District Magistrate shall
disburse the amount as per the direction of the
Court. However, it is pointed out that there was
a pending proceeding under Section 498A of the
Indian Penal Code at the instance of the
petitioner against her in-laws during the lifetime
of the husband.
9. It is seen from the Office Memorandum
dated September 11, 1998 of the Government of
India annexed to the writ petition that the
concept of ex gratia lumpsum compensation
was for families of Central Government Civilian
Employees. The same principle, it is argued,
has also been applied in the present case.
10. Heard learned counsel for the parties.
11. The application of the petitioner for grant
of ex gratia compensation, annexed at page 18
of the writ petition, undoubtedly mentions that
the good office of the Additional District
Magistrate, Howrah was extending its hands to
help the "family" of the demised in collaboration
with the Government of West Bengal.
12. However, the very next sentence of the
said application mentions the petitioner herself
and her six year old daughter as the "family" of
the deceased.
13. The manner in which the application was
made clearly shows that the same was for
financial support to the petitioner and her six
year old daughter, who were and are in financial
distress on the demise of the petitioner's
husband. It is evident from the said application
that the petitioner has been a dependent of her
husband during his lifetime.
14. Insofar as the pendency of the application
under Section 498A of the Indian Penal Code
during the lifetime of the husband is concerned,
the same does not per se take away anything
from the contention of the petitioner that she
was entitled to ex gratia compensation as the
widow, being in financial distress on the demise
of her husband. Rather, the filing of the
application under Section 498A of the Indian
Penal Code also operates as an assertion of the
right of the petitioner as the wife of the
deceased, which also entitles her to
maintenance from the estate of a deceased
husband.
15. Thus, seen from the perspective of the
petitioner, the application for ex gratia
compensation was not in the nature of a
declaration of the petitioner's right of
succession on the demise of her husband but
by way of her right of maintenance from the
estate of the husband on his demise.
16. If the petitioner's husband was alive as
on today and the petitioner had made an
application for maintenance from her husband,
the said amount, as granted by the competent
court, would not be distributed among all the
heirs of the husband merely on the premise that
in view of the personal law all the heirs are
entitled to the estate of the husband. Similarly,
the ex gratia compensation sought by the
petitioner was the posthumous extension of a
right to claim maintenance from her husband's
estate and cannot be equated with the right of
succession as such.
17. In such light of the matter, the private
respondent, despite being a Class-1 heir as well,
cannot claim a share in such ex gratia
compensation payable to the petitioner and her
six year old daughter exclusively, which was
disbursed in their favour on their application
merely as an ad hoc measure to meet the
financial distress which the petitioner and her
six year old daughter have been suffering due to
her husband's demise.
18. With regard to other component of the
challenge, the petitioner is justified in arguing
that the order of temporary injunction passed in
a succession certificate proceeding by the
private respondent/mother of the deceased only
pertained to the subject matter of the said
dispute and as per the order itself, was
restricted to withdrawing any amount from any
bank or insurance company lying in the
account of the deceased husband of the
petitioner to the extent as indicated therein.
Hence, the petitioner not being a party there
and the subject matter of the ex gratia
compensation not being a subject matter of the
succession proceedings, the said order cannot
restrain the District Magistrate from disbursing
the entire amount of ex gratia compensation in
favour of the petitioner.
19. Having held so, I do not find any
impediment on the part of the District
Magistrate, Howrah to disburse the entire
amount of Rs.4,00,000/-, intended at the outset
to be disbursed to the petitioner and her six
year old daughter, to the petitioner.
20. Accordingly, W.P.A. No. 22882 of 2023 is
allowed on contest, directing the respondent no.
2, that is, the District Magistrate at Howrah, to
immediately disburse the entire amount of
Rs.4,00,000/- to the petitioner for use by the
petitioner and her six year old daughter by way
of ex gratia compensation on the demise of the
petitioner's husband.
21. Such disbursal shall be made by the
respondent no. 2 at the earliest, positively
within a week from date, by acting on a server
copy of this order.
22. There will be no order as to costs.
23. Urgent photostat certified copies of this
order, if applied for, be made available to the
parties upon compliance of all necessary
formalities.
(Sabyasachi Bhattacharyya, J.)
